Janus v. AFSCME

The Supreme Court held that the First Amendment right to free speech is violated when money is taken from non-consenting employees for public sector unions. Essentially, the collection of agency fees without consent or an opt-in requirement from an employee amounts to forced speech since the employee is financially contributing to the speech activities of a union.

This ruling expressly overruled the 1977 Supreme Court ruling,Abood v. Detroit Board of Education, which found the same collection of agency fees did not violate the First Amendment. Abood was the precedent for the legality of these fees and was based on the state interests of promoting “labor peace” and avoiding “free riders.” Justice Alito, writing for the Janus majority stated:

Developments since Abood, both factual and legal, have ‘eroded’ the decision’s ‘underpinnings’ and left it an outlier among the Court’s First Amendment cases.

State and local governments are already taking steps to comply with Janus and avoid constitutional violations. Further cooperation between labor unions and management will be beneficial in the development of future agency/fair share fees with opt-in consent options for nonunion employees.

Agency or “fair share” fees

Agency fees, also called “fair share” fees, are the share of union dues that support collective bargaining activities of a union but do not include the share that supports union political activities. In Abood the Supreme Court held that although no one can be forced to join a public employees’ union, nonunion members can be required to pay these agency/fair share fees as their part of the collective bargaining process.

Since then, states have adopted laws and agreements allowing collection of these fees from public employees for the purpose of funding constitutionally permissible union activities. The prior law was based on the principle that nonunion employees benefit greatly from unions in their wages, their working conditions, and the representation they receive from the union. Now, under Janus these fees may no longer be collected by public agencies without the consent of nonunion employees.

Mark Janus

Mark Janus is a child support specialist employed by the State of Illinois. He wanted to opt out of monthly deductions from his paychecks for agency/fair share fees that the state withdrew and paid to AFSCME. Janus did not join the union and did not want to fund the union because he did not agree with the union’s positions. Nevertheless, he involuntarily paid an amount equal to 78% of the dues paid by union members.

The applicable state law did not provide Mr. Janus an option for opting out. All Illinois public employees were required to pay the agency fees whether or not they consented or belonged to the union. Otherwise, nonunion employees would get all of the benefits of AFSCME’s collective bargaining efforts without paying a dime for the costs of those efforts, becoming so-called “free riders.”

AFSCME and public employment unions

Relying on the experience of 28 other states and the federal government, where nonunion employees are not required to pay agency fees, the Janus majority observed that unions could remain financially stable without requiring payments from nonunion public employees. However, there is no question that this decision will fundamentally change the way public employee unions are financed and operated, especially in Washington and the other 21 states where strong unions have been supported by agency and fair share fees.

This decision applies only to nonunion employees who have not opted in and consented for payroll deductions of agency fees: It does not apply to union members. In fact, union members have a First Amendment right to freedom of association. Questions that may arise from union members should be handled according to the terms of their collective bargaining agreements and in cooperation with their union representatives. It is critically important to avoid any potential unfair labor practices as well as any First Amendment violations for collecting agency fees from nonunion employees.

Stop payroll deductions for agency/fair share fees

Although there are more questions than answers about the impacts of the Janus decision, prompt action needs to be taken. Janus requires public employers cease making payroll deductions for agency/fair share fees immediately. In addition, any agency fees that might have been collected since June 27, 2018, should be refunded to the nonmember employees: Unions should be willing to assist in any refund of agency fee money they have received since that time.

Next Steps

Employers should keep clear records, stay in communication with their unions, and refer questions from union member employees to the unions. Employers need to stay neutral about these issues.

Regarding a pre-Janus consent or “opt in” for agency fees, I do not think a form that provided two choices — union dues or agency fees — would meet the Janus requirement to show a voluntary waiver of the First Amendment right not to pay the fees.

Employers also need to consult with legal counsel regarding revisions to collective bargaining agreements required post-Janus. For example, security provisions requiring agency/fair share deductions should be removed and provisions for charitable payments in lieu of union dues (see RCW 41.56.122) may no longer be allowed based on the same Janus First Amendment analysis.

MRSC will work with other partner organizations to help share information and practice tips. There are related legal questions that will be resolved between unions and their members, likely without a need for involvement of local government employers. We strongly recommend you seek the advice of your agency’s legal counsel and work closely with your unions about next steps for the future.

Questions? Comments?

If you have questions about this or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post or other similar topics you would like me to write about, please email me.

About Linda Gallagher

Linda Gallagher joined MRSC in 2017. She previously served as a Senior Deputy Prosecuting Attorney for King County and as an Assistant Attorney General.